The Impact of Judicial Vacancies on Federal Trial Courts

In this study, the Brennan Center interviewed more than 20 chief judges, court administrators, and practitioners from 10 districts which either currently or recently had judicial vacancies to get a firsthand account of how vacancies impact our trial courts. These judges reported that vacancies slowed the court’s ability to resolve motions and try cases, which drove up litigation costs, caused evidence to go stale, made it harder to settle civil cases, and in some instances, pressured clients to plead guilty. They also said vacancies created heavier caseloads, which meant judges had less time to spend on cases, and resulted in fewer administrative staff, which left courts unable to effectively manage dockets. Although some districts are able to compensate for empty seats, their stopgap solutions do not fix the problem and only underscore the need to fill those seats.

Since 2009, the federal trial courts have experienced unusually high and sustained levels of judicial vacancies.1 Following years of obstruction, the pace of Senate confirmation of judicial nominees has dramatically accelerated since April 2014.2 Yet half of all district court vacancies lack nominees (25 out of 50, as of July 14, 2014),3 meaning that more than two dozen vacancies are likely to remain unfilled in the foreseeable future. (Under current practice, nominees are put forward by the White House following consultation with home state senators, who have the power to keep nominees from moving forward in the Senate.) In addition, nine new district court vacancies are expected to open by the end of the year.4 From habeas petitions waiting years to be heard, to complex patent disputes unable to find a trial date, vacancies affect individuals and businesses that rely on the courts to resolve their disputes and protect their rights.

In an earlier report, the Brennan Center analyzed national court data on vacancies and caseload in order to document the burden that judicial vacancies create.5 In this study we dig deeper, analyzing the experiences of 10 districts that currently have judicial vacancies or that recently had vacancies filled. An analysis of court data, coupled with interviews with more than 20 chief judges, court administrators, and practitioners, suggests that vacancies impact the ability of many courts to effectively and timely administer justice. In eight of the 10 profiled districts, judges and court administrators reported that judicial vacancies had a substantial impact on their courts.

Case delays: Delay in resolving motions and hearing trials was the most common impact cited in interviews with judges and court administrators, with eight districts reporting delays caused by vacancies. Our analysis of court data found that having a single judicial vacancy for 12 months was associated, at a statistically significant level, with a 2 percentage point increase in the percentage of cases pending for three years or more.

Less time spent on individual cases: Judges in four districts observed that heavier caseloads due to vacancies meant they spent less time considering individual cases, raising troubling concerns about the quality of justice dispensed.

Administrative burdens: Vacancies mean more than the loss of a judge. Judges and court administrators in five districts emphasized the “trickle-down” effect on judicial administration, including the loss of law clerks and other administrative resources and reduced capacity for the work of judicial committees.

Risk of judicial burn-out: Vacancies mean more work for a district’s remaining judges. In eight districts, chief judges and court administrators raised concerns about judges taking on heavy workloads in an effort to compensate for vacancies, with four specifically citing judicial burn-out as a cause for concern.

At the same time, the experiences of the 10 profiled districts suggest that some districts have a greater ability to compensate for unfilled seats than do others, with the amount of assistance from “senior judges” (judges who are retired from active service but continue to hear cases on a voluntary basis) playing a particularly important role.

This study suggests that unfilled seats leave many federal trial courts unable to effectively manage their dockets — with the individuals and businesses that rely on these courts paying the price. The White House and Senate should prioritize identifying nominees for unfilled judgeships and continue their recent progress in confirming qualified nominees.